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Appeal of Prop 8 Ruling Set for Dec. 6

The appeal of the August ruling striking down California’s same-sex marriage ban, Proposition 8, is set for December 6, 2010.

Back in August of this year, US District Judge Vaughn R. Walker ruled that Prop 8 violated the US Constitution and ordered it overturned. However, due to the certain appeal process, Judge Walker granted the defendants (Yes on 8 ) a stay of his ruling, meaning that Prop 8 is still the law of the land until the appeals process is over or his ruling is reversed by a higher court. At trial, the justices will be hearing two arguments.

Standing

First, Yes on 8 will be arguing why they should be granted Article III standing to appeal Judge Walkers’ ruling. This is probably the big issue that could end this legal fight right then and there. Last year, the Judge walker allowed Yes on 8 to “intervene” in the Prop 8 trial when both Jerry Brown – currently CA’s Attorney General – and Governor Arnold Schwartzenneger said they would not defend Prop 8 in court. This is no the same as being granted Article III standing.

In order for Yes on 8 to be granted standing, they will need to argue to the justices that they are somehow harmed if same-sex marriages are allowed to take place. Whether or not you are for or against same-sex marriage, I can tell you that this is a really hard argument to make in court. In the earlier trial, Judge Walker declared that Prop 8 does not effect those who are opposed to same-sex marriage. The only possible and far stretch of an argument for them to make is that they would be injured by the fact that the state government isn’t enforcing a law enacted by the people. Unfortunately for this argument, the Supreme Court has previously said that this kind of argument, in itself, isn’t enough to confer standing. (Allen v. Wright, 468 U.S. 737, 754 (1984))

If at trial, Yes on 8 fails in their arguments to be granted standing, then the trial essentially ends there. With California’s Attorney General and Governors offices refusing to defend the state, there are no other agencies or groups that could really be granted standing in Yes on 8’s place. Therefore, the case will be dismissed for lack of standing and Judge Walker’s stay will be lifted resulting in the immediate overturning of Proposition 8.

In this SF Chronicle article, Gay right’s advocates, who have been more cautious regarding legal challenges than the plaintiffs’ lawyers – would like this to be the outcome of the case. However, the plaintiffs’ lawyers in the case have stated that they would be fine if Yes on 8 was granted standing to continue the trial because they are looking for an affirmative ruling that declares LGBT men and women have the same rights under the Constitution as heterosexuals (see Washington Post article below).

Appeal

If Yes on 8 is granted standing, then we enter the classic appeals process where Yes on 8 will need to argue that Judge Walker in the lower court is incorrect in his decision as a matter of fact, law or procedure.

Based on this Washington Post article, it would seem that Yes on 8 is going to go for a procedural argument, claiming that Judge Walker conducted a one-sided trial – Judge Walker is openly gay – and ignored past precedent when reaching his verdict. However, this is also a tough argument to make considering the very lackluster case the defendant’s put forward during the first trial, only brining two witnesses to testify on the issue of child rearing (which were quickly rebuffed) and citing the Bible and God as legal evidence. This in comparison to the 17 witness testimony in favor of same-sex marriage.

It looks like December 6 is going to be the day to become interested in law school again.